In 1965 a dispute arose over the introduction of one-man bus routes in Melbourne. Union bans on the disputed routes led to fines being imposed in 1966. By 1969 the Tramways Union had accrued some 40 fines totalling $13,200.

Melbourne tram circa 1969.

Those fines arose from the 1947 Arbitration Act (Commonwealth). The Act was amended in 1951 by the Menzies government with an increase in the penalties for contempt of a court order (sections 109 and 111), which were £500 on a union, £200 or imprisonment for 12 months on a union official and £50 on a rank and file member. Section 138 provided for a £100 fine on an officer of the union for advising any member to take direct action. By 1969 contempt of court fines were $1,000 a day for a union. Between 1956 and 1968 unions were fined 799 times for a total of $282,410.

There was growing rancour amongst rank and file unionists towards the hated penalty provisions, together known as the penal powers. At the same time militancy and confidence were increasing amongst a layer of (mainly) younger union activists. In 1969 the Communist Party and communist-led unions decided to confront the penal powers head-on.

The Tramways Union had been paying off the fines at a rate of $100 a month, but in 1967 Industrial Registrar suddenly demanded immediate payment of $3,000. The Union said this was impossible and offered $200 a month, but the Registrar seized the union bank account and recovered $3,741.

Early in 1969 the Registrar obtained a summons for Clarrie O’Shea, Victorian state secretary, to appear with the union’s records over the $8,100 still owing, set for 20 March. O’Shea dodged this and two further summons to appear. Finally, when he did appear on May 15 he refused to take the oath and hand over the union books. He was jailed for contempt of court by the judge, John Kerr (Yes, that John Kerr), and sent to Pentridge prison.

On Friday May 16 some half to one million workers struck across Australia. The ACTU made no resolution on the jailing of O’Shea or on strike action. The Trades and Labour Councils (TLCs) of Western Australia, South Australia and Queensland called for general strikes. The Victorian, New South Wales and Tasmanian TLCs refused to endorse the strike and in some cases were hostile to it. Newcastle, Wollongong and Canberra TLCs called out their members. In Tasmania, 22 “rebel” unions representing 50,000 workers (80 percent of the workforce) organised a general strike.

In the afternoon of Tuesday May 20, Dudley MacDougall, a former advertising executive of the Australian Financial Review, paid both the union’s fines ($8,100) and O’Shea’s personal fines ($500). MacDougall claimed that he had won the money on the Opera House lottery, but O’Shea maintained that ASIO had something to do with paying the fine. Either way, nothing was ever proven. At 11 am Wednesday May 21 Kerr discharged O’Shea from examination. On release O’Shea was as defiant as ever.

In 1970, sections of the Act were amended. Fines were still levied, but no unions paid them.

What is the situation now? The $8,100 in 1969 would be worth about $90,500 now. For comparison, these are some recent examples. The CFMEU was fined $1.25 million for contempt of court over a dispute with Grocon in 2012 and 2013. (In contrast, Grocon was ordered to pay only $250,000 in connection with the deaths of three people after a wall collapsed at a building site in Melbourne in 2013.)

The CFMEU was fined $110,000 and the officials Aaron Cartledge, David Bolton and Michael McDermott $4,600 each for breaches of right of entry provisions at an Adelaide site in 2014. Also in 2014, 117 workers of the CFMEU and AMWU were ordered to pay $680,000 in fines. Thirty-three failed to pay up and risked having their personal assets seized.

Fines now arise from the Fair Work Act and the Australian Building and Construction Commission. The magnitude of the fines seems to have increased by a factor of ten, and the unions seem unwilling or unable to defy them. While individual unionists have much at stake now (home, superannuation) compared to the 1960s and the fear of bankruptcy is well-justified and understandable, in the long term paying the fines can only pave the way for more tyrannical laws.

There has never been a general right to strike in Australia, only periods where strike action is possible and there is much militant activity, such as in the early 1970s following the defeat of the penal powers, and when it is punishing and unions are cowered, as it is now. But those in the union movement who think that the course of least resistance will suffice should be reminded of the fact that unionism can get a lot tougher than it is now.

In the 19th century the Combination Act (UK, 1799) and the Master and Servants Act (NSW, 1828) meant that unions were basically illegal and an employer could imprison an employee who refused to work.